Updated March 13, 2024 at 4:18 PM ET
ATLANTA — The judge overseeing the Georgia election interference case against former President Donald Trump and his allies has thrown out six criminal counts from the indictment.
Trump now faces 10 felony charges in Georgia, instead of 13.
Fulton County Superior Judge Scott McAfee agreed to grant motions from defendants in the case to quash six counts in the indictment, writing in an order Wednesday that: "The Court's concern is less that the State has failed to allege sufficient conduct of the Defendants – in fact it has alleged an abundance. However, the lack of detail concerning an essential legal element is, in the undersigned's opinion, fatal."
Trump and the other 14 remaining co-defendants in the case still face charges of racketeering and other crimes. One defendant, former White House chief of staff Mark Meadows, now faces only a racketeering charge.
"As written, these six counts contain all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited," McAfee wrote. "They do not give the Defendants enough information to prepare their defenses intelligently, as the Defendants could have violated the Constitutions and thus the statute in dozens, if not hundreds, of distinct ways."
Trump and the five other defendants on the order have pleaded not guilty to the charges against them.
McAfee quashed counts 2, 5, 6, 23, 28 and 38 — all of which focus on alleged efforts by the defendants to solicit public officials, including the Georgia secretary of state and members of the Georgia House and Senate, to violate their oaths of office.
The indictment alleges that defendants pressured these officials to "unlawfully appoint presidential electors" or "unlawfully influence the certified election returns." Prosecutors cite when Trump lawyer Rudy Giuliani called on state lawmakers to convene a special session to overturn Georgia's election result or when Trump called Secretary of State Brad Raffensperger and asked him to find 11,780 votes.
McAfee wrote that when prosecutors alleged that the defendants violated their oaths to the Georgia Constitution and the U.S. Constitution, that charge was so broad that it would be impossible for defendants to prepare a defense.
"On its own, the United States Constitution contains hundreds of clauses, any one of which can be the subject of a lifetime's study," McAfee wrote.
McAfee wrote that prosecutors could appeal the ruling or ask a grand jury to produce a more specific indictment on those six counts.
Jeffrey Brickman, a defense attorney and former prosecutor, says going back to a grand jury is typically an easy fix. But with so many other charges still in play, he might not have felt the need to if it was his case.
"This was never meant to be the lead charge. It may have been how the investigation started," Brickman says, referring to the Trump phone call to Raffensperger. "But then it blossomed and went in different directions."
Still, the underlying acts — the phone call, the legislative testimony — don't just disappear, even if the counts most closely connected to those acts do. All can still be used to support prosecutors' central charge in this case: racketeering.
But Anthony Michael Kreis, a professor at Georgia State University who teaches constitutional law and has been closely following this case, says he sees at least one reason Fulton County District Attorney Fani Willis may want to fight for these dismissed counts.
"I think Fani Willis was really trying to tap into a theme that what Trump and others were trying to do was upend constitutional order and violate the heart of our democracy," Kreis says. "And so these charges spoke to that in a way that some of these other ones don't and so I think she'll be loath to let this go."
Kreis says that would require illustrating for a grand jury the specific, constitutional theory beyond the charges. For example, if Raffensperger had complied with Trump's request, would he have violated the Georgia Constitution's guarantee of the right to vote, or the U.S. Constitution's equal protection clause?
"She really just has to button up the constitutional theory that says, 'This is why, if Donald Trump got his way, the individuals who he was discussing overturning the election with would have violated the constitutions of the United States and of Georgia,' " Kreis says.
Trump's lawyer Steve Sadow wrote in a statement, "The ruling is a correct application of the law, as the prosecution failed to make specific allegations of any alleged wrongdoing on those counts. The entire prosecution of President Trump is political, constitutes election interference, and should be dismissed."
The Fulton DA's office declined to comment beyond saying they are reviewing the ruling.
McAfee is also weighing whether District Attorney Willis and her top special prosecutor, Nathan Wade, should be removed from prosecuting the case due to an alleged conflict of interest. Several defendants in the case argue that Willis stood to personally benefit from the prosecution due to a romantic relationship with Wade, whom she hired for the case.
McAfee is expected to rule on that matter this week.
A trial date for Trump and the other defendants has yet to be set in Georgia, as the judge wrangles the former president's complicated legal calendar this summer and a deluge of pretrial motions from the many defendants.
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